For the Defense - Vol. 5, Issue 3 - 16

	
Are Restored That Ensure Effective
	
Representation by Conflict-Free Defense
	Counsel.
6.	 Constitutional Rights Must Not Be Abridged.
7.	 Use of Virtual Mechanisms Must Be Temporary,
	
Limited, and Consistent with Constitutional
	Rights.
8.	 Use of Virtual Mechanisms Requires the
	
Informed and Voluntary Consent of the Accused
	
Based on a Robust Attorney-Client Relationship.
9.	 Any Measures Implemented to Address the
	
Pandemic Must Not Exacerbate the Well	
Recognized Historic Failures of the Criminal
	
Legal System.
10.	 Courts Should Use Pre-Trial Release and Other
	
Mechanisms to Minimize the Pressures on the
	
Accused During the Pandemic, Including
	
Affording an Accused the Unilateral Right to
	
Elect a Bench Trial Where that Right Does Not
	
Already Exist.
Following an extensive analysis of defendant's rights,
centered on Sixth Amendment protections, NACDL
ultimately concluded that they do, "not believe that it
is possible to protect health and safety in the courtroom
while protecting constitutional rights of the accused."13
This points toward the inevitability of some criminal
proceedings occurring online, but before deciding
whether to pursue in-person or online proceedings,
every defense lawyer must consider what is best for the
individual client.

Know Your Client and Keep Your Client
Informed
COVID-19 has made many aspects of criminal defense
challenging, including client communications. Some
jails have set up videoconferencing capabilities for
contacting incarcerated clients, albeit with limitations
on capacity.14 Others offer opportunities for phone calls,
which come with their own worries about privacy.15
Yet in others, attorneys must visit jails in person to
talk to their clients, placing them at the mercy of the
jail's COVID-19 protocols and the thoroughness of
the cleaning. Notably, the chaos that the coronavirus
has created in everyone's lives makes connecting with
clients who are not incarcerated difficult as well.
These difficulties come at a time when it is incredibly
important to communicate with clients. Providing
the effective assistance of counsel - also enshrined in
the Sixth Amendment - means understanding what
the client needs and fully explaining the client's
options.16 Those conversations will be longer when
Sixth Amendment concerns must be balanced with your
client's individual priorities. Lawyers must take the time
to explain what options exist for online or in-person
proceedings given the local court procedures; the likely
16

For The Defense l Vol. 5, Issue 3

ramifications of those choices in terms of health, delay,
and continued incarceration; and the best estimates
of success of the case and any appeal. That's a lot to
convey through a mask or online.

How to Be Effective in Front of Judges
Once you have evaluated the possibilities and
discussed what is best for your client, it is time to try the
case. If you are advocating online, here are some things
to consider.

Maximizing Your Set-up
Whether you are connecting with the court through
Zoom, Polycom, Facetime, or any program that
permits online hearings, Internet connectivity matters.
Difficulties only increase when a screen pauses and
stutters or when the sound lags behind the picture,
only to catch up, rapid-fire moments later. Here are a
few ways that you, and your client, can improve your
Internet connections.
First, make sure that your computer is as close to the
router as possible. The router is the physical device that
brings the Internet into your home or office. Getting
close to the router helps. Plugging into the router for a
hard-wired connection helps connectivity even more.
Next, make sure that no one else is draining the
strength of the Internet access in your vicinity. This
means closing other Internet browsers on your
computer and turning your phone off or putting it on
airplane mode. The fewer machines drawing bandwidth
from the router, the better. This means no one else
should be surfing the Internet or playing online video
games. It also means turning off any home assistants
like Echo or Alexa.
There are other small things you can do within
a given online platform, as well, to maximize your
connectivity with the court. Some programs permit
virtual backgrounds. Turn virtual backgrounds off.
Some platforms allow for HD quality video graphics.
Turn this off as well. Turning these things off allows the
computer to do less and to focus its bandwidth on the
essentials. Minimizing the number of videos onscreen
that the program needs to render at any given moment
helps as well. One way to ask less of the program is by
using a view that focuses solely on the person speaking
(in Zoom, speaker view) rather than one that has all
possible participants showing in the screen, Brady
Bunch style (officially referred to as gallery view). If all
else fails, turn off your camera, which will permit you
to see others, although they cannot see you. Asking
the program to do less should improve its ability to
function.
In general, online courtroom meeting platforms
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